Ramalagan and Another vs Emperor

Kulwant Sahay, J.—The petitioners have been bound down to be of good behaviour for a period of one year under Sections 118, 110 of the Code of Criminal Procedure by the Sub-Divisional Magistrate of Siwan. On appeal the order of the learned Magistrate has been confirmed by the Sessions Judge of Saran. The petitioners have come up to this Court in revision against the decision of the learned Sessions Judge. The main grounds urged on their behalf are: that the evidence adduced by the prosecution is too vague general; that the evidence, if analysed, reduces itself to one of mere belief and opinion on the part of the witnesses without reference to acts which may have induced such belief and that such evidence ia not sufficient in law to bind down the petitioners, that the evidence adduced on bahalf of the defence has not been properly dealt with by the learned Sessions Judge, that having regard to the very large mass of evidence produced on behalf of the defence and to the fact that assuming the evidence on behalf of the prosecution is admissible in law there is such a divided opinion about the character of the accused that no case has been made out for binding them down.

It appears that on the 23rd of January, 1923, one Abdul Rauf lodged information before the police u/s 457, Indian Penal Code, against some persons unknown. On the 9th of March, 1923, the two petitioners, along with their father, were arrested by the Sub-Inspector of Siwan u/s 54 of the Code of Criminal Procedure in connection with the investigation relating to the information lodged by Abdul Rauf. On the 29th of March, 1923, the police submitted a final report in connection with the said case u/s 457, in consequence whereof the petitioners and their father were discharged from custody. The police, however, submitted a report against the petitioners and their father and another man u/s 150 of the Code of Criminal Procedure and although the petitioners were released from custody in the case of Abdul Rauf, they were retained in custody on account of the report u/s 110 of the Code of Criminal Procedure submitted against them. The petitioners were, however, released on bail by an order of the Sessions Judge in May, 1923.

The proceedings were started against the present petitioners as well as their father, Ishwar Ahir, and one Harbir Ahir. The case against Ishwar Ahir was withdrawn during the course of the trial and separate enquiry was ordered to be held against Harbir Ahir and the present proceedings continued against the two petitioners alone.

It appears that 58 witnesses have been examined on behalf of the prosecution of whom only three come from Jian, the village in which the petitioners reside. Out of these three, one witness, Jang Bahadur, has said nothing against the petitioners. On the other hand, the defence have examined 76 witnesses of whom 36 come from Jian and all of them say that the petitioners are not thieves and they have no reputation of being thieves and they live on cultivation and have their own cattle.

The documentary evidence produced on behalf of the prosecution consists of first information reports of cases of theft. The learned Sessions Judge refers to the three reports in which Ramlagan was suspected, but in none of these cases it appears that Ramlagan was prosecuted or that the charge was brought home to him. In one case the report was based upon an information lodged by one Mt. Mantorni about the theft of her crops. Mt. Mantorni, however, retracts from the statement alleged to have been made by her before the police. In another case there was a theft in the house of one Babu Brij Kumar Sahay, a pleader practising at Siwan, and information was lodged by the chaukidar the next morning. In this information Ramlagan was not named. Babu Brij Kumar Sahay, however, subsequently wrote a letter to the police saying that he suspected Ramlagan and others of Jian. In this case also Ramlagan was not proceeded against and the suspicion against Ramlagan remains a suspicion only. In the third case there was a theft in the house of one Babuan Lal in December, 1922. The first information was lodged by a chaukidar in which Ramlagan and others were suspected. These were the only three cases in which Ramlagan is alleged to have been suspected in specific cases of theft, but Ramlagan was not actually prosecuted and the suspicion against him was not confirmed by evidence. The fourth case referred to by the learned Sessions Judge is that of the information lodged by Abdul Bauf u/s 457, Indian Penal Code. The learned Sessions Judge says that the house of the petitioners was searched by the police and stolen Articles were recovered. There is no evidence whatsoever to connect the Articles alleged to have been recovered from the house of the petitioners with the stolen articles, and, as I have already remarked, the petitioners were released from custody upon the report of the police. This is the whole of the documentary evidence considered by the Sessions Judge and to my mind they do not go to prove that the petitioners are by habit thieves and housebreakers. The learned Sessions Judge then considered the oral evidence. In considering such evidence to prove a charge u/s 110, Clause (a) of the Code of Criminal Procedure, with which the petitioners have been charged in the present case, it is necessary to keep in mind that such evidence must be specific and must relate to particular instances within the knowledge of the witnesses. As was laid down by the Madras High Court in the case of Kathamiddle Ranga Reddi v. King-Emperor (1919) 43 Mad. 456 mere belief and information without reference to acts and instances which have induced the witnesses to form the opinion, can hardly be regarded as evidence of repute within the meaning of Section 117(3) of the Code. The evidence must be of persons who are acquainted with the accused and live in the neighbourhood and are themselves aware of the accused''s reputation. It must be an opinion formed by the witnesses from specific cases coming to their knowledge and not merely from reports or rumours received from others. For instance, where a witness says that to his knowledge a certain person is a thief or a housebreaker by habit and on being pressed to give the source of his knowledge he merely says that there is a rumour to such effect or that he heard it from the villagers generally without being able to name any one of them, such evidence is not admissible in law. The matter has been considered by the learned Judge''s in the case noted above and I am in complete agreement with the principles laid down by them. Bearing these remarks in mind I find that the evidence produced is this case falls short of what is required by law to prove that the petitioners were guilty of the charge under Clause (a) of Section 110 of the Code of Criminal Procedure. As regards the two prosecution witnesses Nos. 3 and 4, who come from Jian, the first says that to his knowledge the accused are habitual thieves, they are reported to be thieves, and are always suspected in cases of theft. In cross-examination, however, he says that he heard that the petitioners were thieves about four years ago, this he heard from some Ahirs, whose name he did not know, what he heard was not about any specific instances of theft, he held no enquiry to verify what he heard and he never personally saw the accused steal. The other witness namely, P.W. 4, also states in his examination-in-chief that to his knowledge the accused are habitual thieves and their general reputation is also that of thieves; but in cross-examination he says that he had heard that the accused are thieves, everyone says they are thieves, he is unable to give the names of the persons from whom he heard and he could not mention any particular cases about which he heard that the accused were thieves. Similarly the other witnesses who speak about the petitioners being thieves and house-breakers by babit from their own knowledge are compelled in cross-examination to say that their so-called knowledge-is merely a belief from hearsay information received from sources which they are unable to disclose. I have gone through the whole of the prosecution evidence in his case and I am unable to find any definite evidence to connect the petitioners with any specific case of theft or house-breaking, and the whole of the evidence resolves itself into statements by witnesses made from reports received by them, the source of which they are unable lo disclose and which they confess to have never verified by personal enquiry. Similarly the other set of witnesses who say that they believe the accused to be thieves or suspect them to be thieves are compelled in cross-examination to say that their belief or suspicion is based on mere hearsay reports which they are unable to substantiate as correct. There is no doubt a mass of evidence on the side of the prosecution which state in general terms that the accused are thieves or housebreakers, but such statements based on no enquiry whatsoever and not upon personal knowledge but on mere hearsay reports are to my mind not admissible in law, and cannot form the basis of an order u/s 110 of the Code of Criminal Procedure. The learned Sessions Judge refers to the feet that the petitioners have in recent years grown rich and there is no explanation as to the source from which they acquired this wealth, and he infers that they have grown rich by means of the nefarious trade they are carrying on as thieves and dacoits. On this point there Is evidence not only on the side of the defence but also on the side of the prosecution that the petitioners are carrying on sugarcane cultivation, have their own cattle and land and they are making profit thereby. In any event no safe inference can be drawn from the fact of their having grown rich, that they have come by their wealth by means of theft or decoity. There must be specific evidence on the point which is wanting in the present case. In the next place, as I have already remarked, there is a large mass of evidence on behalf of the defence to prove that they are not thieves or house-breakers. No less than 36 witnesses come from their own village of Jaian and testify to the good character of the petitioners. The learned Sessions Judge disposed of the whole of the defence evidence with the remark that the accused were enlarged on bail and they have brought this (sic) number of witnesses from their own village and from the neighbouring villages because these people come to depose on behalf of the accused out of fear. There appears to be no justification for this remark. As was remarked in the case of Hakim Singh v. Emperor (1915) 13 A.L.J. 1055, where in a proceeding u/s 110 the accused person is able to produce witnesses on his behalf to speak of his good character, the Court ought to pay particular attention to such evidence and to give substantial reason for not believing such evidence before it makes an order u/s 110. The reasons assigned by the learned Sessions Judge do not appear to be sufficient to disbelieve the whole mass of the evidence adduced by the defence. To my mind, the evidence on the Bide of the defence to the effect that the petitioners are men of good character is as weighty if not weightier than the evidence for the prosecution, and upon the evidence produced in this case it cannot be held that the petitioners are by general repute men of bad character or habitual thieves and housebreakers. I may mention that although the petitioners were charged under Clauses (a) and if) of Section 110, Crim. Pro. Code, there is no evidence and no finding that the petitioners are so desperate and dangerous as to render their being at large without security hazardous to the community. The only finding is that they are by habit thieves and house-breakers and this finding is not supported by the evidence adduced in the case.

I therefore set aside the order and directs that the bond be cancelled.